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Letters: A Libertarian’s Proposal to Reform Involuntary Commitment

Editors’ note: DJ Jaffe is the Executive Director of MentalIllnessPolicy.Org. We are pleased to publish his letter below.

Current civil commitment policies protect neither the liberty of persons with mental illness nor the liberty of the public. They have increased government intrusion, increased public costs, and are inhumane. Changing to scientifically based commitment procedures can increase the liberties of individuals with mental illness, increase the liberties of those without mental illness, and help downsize government. Therefore, improving civil commitment laws should be a goal of libertarians.

I have a relative with schizophrenia. Having said that, I agree with Herschel Hardin, a former leader of the British Columbia Civil Liberties Union, who has a son with schizophrenia, the diagnosis commonly found in people subject to civil commitment. He wrote:

The opposition to involuntary committal and treatment betrays a profound misunderstanding of the principle of civil liberties. Medication can free victims from their illness—free them from the Bastille of their psychoses—and restore their dignity, their free will and the meaningful exercise of their liberties.[1]

Because of the inadequacies of our current civil commitment practices, 5,000 individuals with mental illness commit suicide annually.[2] Another 200,000 are homeless.[3] Of course, those are not primary concerns to libertarians, most of whom believe that individuals have a right to kill themselves or live homeless.

Costs of the Status Quo

But as a result of our current restrictive commitment procedures, persons with mental illness kill 1,000 individuals annually, roughly 10% of all homicides.[4] The most likely victims are family members,[5] police, and sheriffs.[6] Take the parents of mentally ill Eric Bellucci in Staten Island. They were so fearful of their son, who had been hospitalized and involuntarily committed multiple times, that they locked him out of the house. So he camped in their yard. They begged to have him civilly committed, but the law required Eric to first become “dangerous.” So he did. On October 13, 2010 he stabbed both his parents. They are dead and Eric will be permanently incarcerated. Hardly a victory for individual liberties.

Other individuals with untreated mental illness kill so many they become famous and earn sobriquets like “Unabomber” Ted Kaczynski and “Fort Bragg Assassin” Aaron Bassler. Their families tried to get them treatment before they became killers. James Holmes, Seung-Hui Cho, and most recently Thomas Caffall each killed innocents and lost their own lives. But civil commitment laws don’t help prevent dangerous behavior, they require it.

Because of restrictive civil commitment laws, individuals with serious mental illness are regularly shot by law enforcement who believe their erratic and irrational behavior is putting their own safety or that of the public in immediate danger.[7] People with severe mental illnesses are killed by police in justifiable homicides at a rate nearly four times greater than the general public.[8] The recently released videos of Kelly Thomas being beaten by police in Fullerton, California[9] and Michigan police shooting Milton Hall are the latest examples.[10]

Another concern of libertarians is that our current system is causing massive incarceration. As Amanda Pustilnik noted, 300,000 individuals with mental illness are now behind bars, due to the inadequacy of civil commitment laws. 15-25% of all prisoners have a mental illness.[11] With reformed civil commitment laws, many may have avoided incarceration. As a result of poor commitment laws, we now have a jail-based system for the most seriously ill. That creates a major drain on local law enforcement.[12] And it is expensive to the corrections system. The Department of Justice estimates that it costs $15 billion to incarcerate the 300,000 mentally ill.[13] That hardly counts as small government.

The lack of better civil commitment standards puts government itself at risk. President Ronald Reagan was shot by mentally ill John Hinckley. President James Garfield was killed by mentally ill Charles Guiteau. Presidents Andrew Jackson and Theodore Roosevelt were shot by persons with mental illness. Congresswoman Gabrielle Giffords was shot by mentally ill Jared Loughner.

Clearly, the status quo is not serving the liberty needs of people with mental illness or the public safety needs of those without. It is also contributing to growth in government. Changes are needed that are grounded in science.

Knowledge about Schizophrenia Needed to Make Informed Changes

Untreated schizophrenia and untreated bipolar disorder are two of the disorders most likely to be represented among civilly committed populations. I’ll limit this discussion to schizophrenia.

Schizophrenia is a real disorder.

Dr. Schaler asserts, “’Mental illness’ generally refers to how certain people behave.” Not exactly. There is not yet a chemical marker that can diagnose schizophrenia. But claiming that schizophrenia doesn’t exist because there is no test is like saying colon cancer didn’t exist before the invention of colonoscopy. Schizophrenia, like Parkinson’s, is diagnosed by analyzing the resultant behavior. For Parkinson’s, the behavior is arm movement. For schizophrenia it is delusional speech and psychotic behavior, among others.

Dr. E. Fuller Torrey collected research proving schizophrenia is a real disorder. Individuals with schizophrenia have enlarged ventricles,[14] a reduced volume of gray matter[15] more neurological abnormalities,[16] more neuropsychological abnormalities,[17] and decreased function of the prefrontal area[18] compared to controls.

Schizophrenia Causes Impaired Thinking

John Stuart Mill’s introduction to On Liberty stated, “It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the “maturity of their faculties.” He was wrong. Some libertarians need reminding.

Science shows some individuals with schizophrenia are not in the “maturity of their faculties.” They don’t always have the faculties to formulate opinions although they almost always retain the ability to speak. Neurocognitive impairment is a core component of schizophrenia and is likely associated with the neurobiology.[19]

In the case of my own sister-in-law, this neurocognitive dysfunction was startling. Before schizophrenia, she was a bright college student. After developing schizophrenia, she became so cognitively impaired that she could not figure out that to change her pants, she had to first take off her shoes, because the pants wouldn’t fit over them.

Schizophrenia also causes individuals to have delusions.[20] John Hinckley shot President Reagan when he was off treatment because he “knew” it was the best way to get a date with Jodi Foster. Russell Eugene Weston Jr. shot two guards at the U.S. Capitol when he was off treatment so that he could find the “Great Safe of the U.S. Senate” where the “ruby satellite control” time reversal system could “sweep him away” to a time when he would not be deceased. When asked if he has a mental illness, he denies it.[21] Rather than being in control of his brain, his brain was in control of him.

Schizophrenia causes some individuals to hallucinate and hear voices. Walk down the street of any major city and you will see psychotic individuals screaming at voices only they can hear. Sometimes these voices command them to do things. Bad things. Being schizophrenic is not an exercise of free will that should be protected. It is a barrier to exercising free will that should be removed.

Schizophrenia prevents some people from even knowing they are ill. Anosognosia is being so sick you don’t know you are sick. It is common in schizophrenia because the brain, the organ charged with insight is impaired.[22] Because it also appears in bipolar disorder, many people have experienced it directly in the grandiose ideation of bipolar friends who are in the midst of an untreated manic stage. “Winning” as Mr. Sheen would say. People with anosognosia can truly believe they found a plan to save the world or that they are the Messiah. Why accept treatment when you’re the Messiah?

Individuals with schizophrenia think differently when treated than untreated. Nowhere is this more apparent than in their attitudes towards civil commitment. While, by definition, 100% of individuals who are civilly committed were opposed to it at the time of commitment, multiple studies show around 80% retrospectively express gratitude.[23]

The proper goal of libertarians should not be to ensure individuals who “lack maturity of their faculties” remain locked in “the Bastille of their psychosis.” Libertarians should work to restore free will and liberties.

Untreated Schizophrenia Is Associated with Higher Incidence of Violence

Nowhere is the debate over civil commitment less informed than when it comes to answering the question “Are people with mental illness more violent than others?”[24] It is largely irrelevant, because civil commitment is not aimed at the 25-40% of Americans some claim have a “diagnosable mental disorder”—your friends on Prozac.

But there is a subset of about 5% who have a very serious and persistent mental illness like schizophrenia.[25] The subset of the 5% group who go off treatment are more likely to become violent than others.[26] This is particularly true when medications that have previously prevented them from becoming psychotic, hospitalized, or violent are stopped. This is the tiny group civil commitment should be designed to help.

We now know that past violence is a good predictor of future violence in individuals with serious mental illness. So is abusing substances. Commitment for seriously mentally ill individuals who have a history of violence or substance abuse should not be as burdensome as commitment for those who don’t.

Medications Reduce Violence in People with Schizophrenia

By reducing hallucinations and delusions, and by restoring “maturity of faculties,” medication reduces violence. This should be readily apparent because almost everyone civilly committed because they were dangerous is eventually released—because they are no longer dangerous. The difference between their pre-commitment state and post-commitment state was the administration of medicines. From a libertarian perspective, it doesn’t make sense to allow someone who is known to need medicines to stay nonviolent to go off medications and become violent. Going off treatment imposes an obligation on the citizenry to pay taxes and expand government so they can be incarcerated. Incident of violence in someone who has mental illness and at the time was compliant with treatment are almost unheard of.

Persons with mental illness who have been stabilized on treatment don’t deteriorate instantly when the treatment is stopped. The medications stay in the blood for a while. As will be seen later, this knowledge opens doors to commitment venues that are less restrictive than inpatient commitment.

What is the current commitment law and how does it work in practice?

Individuals with mental illness are allowed to refuse treatment and cannot be treated in the community system unless they volunteer. For the most seriously ill, this is often an insurmountable hurdle because of their anosognosia, neurocognitive dysfunction, hallucinations, and delusions. Individuals who need the community mental health system the most cannot get in.[27] They are allowed to deteriorate to dangerousness and then become subject to the involuntary commitment system.

But getting into the involuntary system is harder than getting into the voluntary system. In general, many states require individuals to be imminently provably dangerous to self or others.[28] Other standards exist, but they are rarely used and often so narrowly interpreted as to be similar to the “dangerousness” standard. If committed, the individual is confined to a locked ward, which is the most restrictive setting short of incarceration. Once someone no longer meets the standard, he or she is released and free to go off medicines and become dangerous again.

Because the voluntary and involuntary systems are so hard to access, most of the seriously mentally ill who refuse treatment wind up in the criminal justice system with all rights removed. 300,000 are incarcerated, five times as many as are hospitalized. And those incarcerations were likely the result of infringing on someone else’s rights by committing a crime.[29]

Surely there is a better way. Surely this is not what libertarians want to defend.

What Should Be Done?

From a libertarian’s perspective, successful civil commitment reform would use commitment less, use it only when needed, steer individuals away from the most restrictive forms of commitment to less restrictive forms, and place greater reliance on the systems that require the least amount of government. We know how to do that.

The “danger to self” or “parens patraie” commitment standard is the one most likely to be considered problematic by libertarians. But they are presupposing the individual has the cognitive ability to avoid danger to self if he or she wanted. As the previously cited research shows individuals with schizophrenia become a “danger to self” because they develop delusions and hallucinations combined with anosognosia and neurocognitive impairments that prevent them from accessing treatment. While 5,000 mentally ill individuals commit suicide annually, and while libertarians can defend that, many more become dangerous to self by eating out of garbage cans, sleeping on the streets, letting wounds fester, and other activities their dysfunctional brains lack the ability to avoid.

The “danger to others” or “police powers” commitment standard is accepted by almost all, including libertarians. Quoting John Stuart Mill, “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[30] But Mill doesn’t tell us when to intervene. Should we intervene to prevent harm to others when the hallucinations start, when the person goes off medicines, when the person becomes psychotic again, when the gun is purchased, when the bullet loaded, when the gun is fired, or when the bullet hits its target?

The standard is now interpreted so narrowly that it does not apply until after the bullet is fired. As such it ignores the fact that individuals with serious mental illness may become predictably dangerous long before they become imminently dangerous. Because we prevent intervention until after dangerousness, we have to rely on the most restrictive form of commitment: inpatient commitment.

This fact was underscored to me in a West Virginia case where I recently testified. Linda R. Artimez, Director of the Supreme Court’s Division of Mental Hygiene, stated that while West Virginia allows the placement of individuals who are civilly committed in community settings like group homes, it almost never happens. Why? No judge is going to determine that an individual is “dangerous” and simultaneously put them in anything other than the most restrictive setting: a locked ward.[31]

The Advantages of Adding Other Standards for Commitment

Preventing the mass civil commitment and incarceration of people with mental illness requires lowering the commitment hurdle to something below imminently, provably dangerous. Lowering the hurdle would shorten commitments because the longer that treatment is delayed, the longer it takes to stabilize and restore the “maturity of their faculties.”[32] Lowering the commitment standard would also allow use of less onerous forms of commitment like outpatient treatment.

Libertarians may object, fearing that more people will have their rights removed. That is not true. The failure to use a lower standard results in 300,000 people having all their rights removed via incarceration and almost everyone who is committed, being committed to a locked ward.

Libertarians may point to abuse of civil commitment in Stalinist Russia or the United States. Those were due to the inefficacy of treatments and the lack of due process. Treatments are better now[33] and obviously all civil commitment systems need to include vigorous due process protections including independent administrative or judicial review; access to representation; and the ability to submit evidence, question witnesses, appeal decisions, and file habeas petitions. Maintaining strict due process does not increase the size of government. Commitment process uses fewer judicial and legal resources than incarceration. It’s not just a wash, it’s a net savings.[34]

Other Standards That Should Be Used

Once we understand that treatment can prevent violence in those prone to it and that the “choice” to go off medications is not being made of free will but because the brain is impaired, the libertarian objective should be to restore free will, not stand back so violence can occur.

Many standards accomplish that. A “grave disability” standard allows intervention when a seriously mentally ill person becomes “substantially unable, except for reasons of indigence, to provide for any of his or her basic needs, such as food, clothing, shelter, health or safety.” Few libertarians would let someone with Alzheimer’s or developmental disabilities go without treatment simply because they can’t fend for themselves. We should take the same position towards people with schizophrenia.

The “capacity standard” allows intervention when someone as a result of their “serious mental illness is unable to fully understand or lacks judgment to make an informed decision regarding his or her need for treatment, care or supervision.” This is the “lacks maturity of faculties” standard. If someone “due to mental illness, is unable to understand the advantages, disadvantages, or alternatives to a particular treatment, or is unable or unwilling to apply them to his or her situation and requires such treatment to prevent severe mental, emotional, or physical harm”[35] they too “lack the maturity of faculties” and libertarians should not object to their treatment.

By using these lower standards we can intercede with people who are likely to become violent, lose their own liberty, and infringe on the liberties of others or lose their own life due to their illness. By using civil commitment to restore free will, we can prevent massive incarceration of people with mental illness and the resulting bloating of government courts and corrections systems. We can send people to less restrictive forms of commitment, reduce the time in commitment and do a better job protecting the public. In other words, achieve libertarian objectives.

Use Less Restrictive Forms of Commitment

Some alternatives to inpatient commitment, in order from most restrictive to least restrictive, are guardianship, parole or conditional discharge from hospital after involuntary commitment, and Assisted Outpatient Treatment (AOT).

Guardianship procedures allow courts to assign someone else to make all decisions for the person appointed a guardian. He or she is in essence committed to following the guardian’s instructions, which could include staying in treatment. It is very intrusive, but unlike commitment to a locked ward or incarceration, it does allow community living. It is less expensive than incarceration or hospitalization and requires no expansion of government. Guardianship is used most frequently for those who have Alzheimer’s or developmental disabilities. Persons with serious mental illness would rarely need something this restrictive, but the lack of it sends people to something much more intrusive, restrictive, and expensive—like incarceration or inpatient commitment.

Parole and conditional discharge from a hospital after involuntary confinement allow individuals to leave locked facilities—jails and hospitals—and live in the community as long as they meet certain conditions. For mentally ill parolees, conditions could include the requirement to stay in violence-preventing treatment. Likewise, rather than releasing a mentally ill individual from involuntary commitment and allowing the individual to go off treatment again, we could release them with the requirement they stay in treatment. It is not overly expensive and allows individuals to maintain almost all their rights with very little government intrusion except in the narrow area where there is a community interest. Both should be used more frequently.

Assisted Outpatient Treatment is the new kid on the block and the most important and useful. Forty-two states have Assisted Outpatient Treatment (AOT), but no state uses it sufficiently. AOT is a court order to stay in treatment as a condition for living in the community. It is usually limited to those who have a past history of at least two incarcerations, involuntary commitments, or needless hospitalizations.[36] It is palatable to libertarians because it is only used after unfettered liberty has proven unsuccessful. The patient is monitored in the community and can be put in an inpatient setting if they fail in the outpatient setting.[37]

AOT furthers the libertarian goal of preventing people from being sent to more restrictive environments. Research on individuals treated under New York State’s AOT law, called “Kendra’s Law” found 83% fewer were arrested, 87% fewer were incarcerated, 77% fewer experienced psychiatric hospitalization, and length of hospitalization was reduced 56%.[38] In California, where AOT is called “Laura’s Law,” it cut incarceration 67% in one county and 78% in another. AOT cut hospitalization 46% and 86% in the same counties.[39]

AOT helps further the libertarian goal of preventing persons with mental illness from infringing on the liberties of others. In New York, after enrollment in Kendra’s Law, 46% fewer damaged or destroyed property and 43% fewer threatened physical harm to others. Patients who were more violent to begin with were nevertheless four times less likely to perpetrate serious violence after undergoing treatment.[40] The odds of arrest for a violent offense were 8.61 times greater before AOT than they were in the period during and shortly after AOT.[41]

AOT furthers the libertarian goal of keeping government small. In California, it saved $1.81 for every dollar spent. In New York, where approximately 1,800 individuals are under AOT it has been estimated to save $73,800,000 in incarceration costs and $36,000,000 in hospitalization costs for a total of $109,800,000.[42] Libertarians should support use of these less restrictive commitment venues.

Conclusion

Current civil commitment practices fail to result in the libertarian objective of having fewer individuals incarcerated, public safety protected, and government growth restrained. Using lower commitment standards combined with less restrictive treatment venues can reduce the number incarcerated, shorten length of commitments, improve safety of the citizenry, and reduce the size of government. Reforming civil commitment practices can free people with serious mental illness “from the Bastille of their psychoses—and restore their dignity, their free will and the meaningful exercise of their liberties.” There is a strong libertarian rationale for reforming civil commitment laws.

[5] Of spouses killed by a spouse, 12.3 percent of defendants had a history of untreated mental illness; of children killed by a parent, 15.8 percent of defendants had a history of untreated mental illness; of parents killed by children, 25.1 percent of defendants had a history of untreated mental illness; and of siblings killed by sibling, 17.3 percent of defendants had a history of untreated mental illness. 1994 Department of Justice Statistics Special Report, “Murder in Families.”

[12] Michael C. Biasotti, VP, New York State Chiefs of Police “Management of the Severely Mentally Ill and its Effects on Homeland Security” Naval Postgraduate School. 2011.

[13] Department of Justice Source Book on Criminal Justice Statistics (1996). $15 billion is based on an estimated cost of $50,000 per ill inmate per year, and 300,000 individuals with serious mental illness incarcerated.

[26] A twosummaries of the research can be found at MentalIllnessPolicy.org.

[27] Interestingly, from a libertarian perspective, this means the mental health system is treating all others. It prioritizes the least ill and sends the most seriously ill to jails, prisons, shelters, and morgues. This has caused a giant and wasteful mental health industry that rather than serving a core state function of helping those who can’t help themselves, is instead, helping all others. See DJ Jaffe, “Mental Health Kills Mentally Ill,” Huffington Post, January 10, 2010.

[28] O’Connor v. Donaldson, 422 U.S. 563 (1975) and others.

[29] Admittedly, some may be what libertarians call ‘victimless’ crimes like possession of narcotics, prohibited pornography, soliciting a prostitute and others.

[33] All treatments have side effects. All decisions involving treatment, voluntary or not, should balance these side-effects against the efficacy of the treatment.

[34] When Nevada County, CA recently introduced Assisted Outpatient Treatment, they found “County counsel cost is minimal…. Public Defender cost varies, but there would likely be few new or additional costs, because these same individuals would need representation in Criminal Court, Mental Health Court, or Adult Drug Court, if not being dealt with in (outpatient commitment) Court. (Michael Heggarty, Nevada County Behavioral Health, Carol Stanchfield, Turning Point Providence Center, Honorable Judge Thomas Anderson, Nevada County Superior Court. “Assisted Outpatient Treatment in California: Funding Strategies” February 7, 2012.

[37] Many people have questions about how monitoring is accomplished. We already monitor those in the parole system and those with TB living in the community. Likewise we have teams of social workers who monitor the non dangerous mentally ill. There are many feasible existing ways to accomplish monitoring. At minimum, a family member or significant other, or community member could report the reemergence of symptoms to a doctor, social worker, psychiatric nurse, law enforcement officer or other person who could determine if the person needs to be brought to a hospital for evaluation. Assertive Community Treatment (ACT) teams can also be used.

Also from This Issue

Professor Schaler notes that mental illness differs in several important ways from physical illness, and these ways make a mockery of conventional diagnosis. Nonetheless mental illness plays an important role in our legal system; it permits psychiatrists to exercise a significant degree of coercion. Schaler challenges this arrangement and argues that those whom we may classify as mentally ill are still deserving of their liberties, including the liberty to refuse treatment. Schaler also questions whether “insanity” is an appropriate legal fiction at all.

Professor Frances agrees that mental disorders are not diseases properly speaking, but he maintains that they are nonetheless useful analytic constructs. As to coercive psychiatric treatment, he argues it can indeed be a horrific abuse. Still, in some especially desperate cases it will be necessary to save lives and to prevent even greater harms. He recommends several practices designed to minimize the frequency and risks of coercive treatments.

Jacob Sullum asks the mental health establishment for consistency: If mental disorders are not diseases, what justifies involuntary treatment? Evidence of criminal conduct is a matter for law enforcement, not mental health. And how is it that we punish sexual predators (on the theory that they are responsible) — then treat them afterward (on the theory that they aren’t)? Psychiatric diagnoses are ultimately arbitrary, Sullum argues, and they lead to the arbitrary exercise of power.

Amanda Pustilnik argues that the most profound violations of liberty in this area don’t come from coercive psychiatry, but from the warehousing of the mentally ill in our criminal justice system. Such people aren’t more likely to commit crimes, but they fare badly in the criminal justice system, where unusual behavior leads to convictions, longer sentences, parole violations, and reincarceration.

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